MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001
	DOCKET NUMBER:   A2001059879

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was needed at home to take of his mother who had been diagnosed with cancer.  He further states that he is ashamed of his discharge because his two brothers and father all served honorably in the military.  

EVIDENCE OF RECORD:  The applicant’s military records show:

On 5 May 1972, he entered the Army for 3 years.  He successfully completed basic and advanced individual training (AIT), was awarded military occupational specialty (MOS) 36K (Wireman), and was assigned to Hawaii for his first permanent duty station. 

There are no acts of valor, significant achievement, or service warranting special recognition documented in the applicant’s record and it confirms the highest rank he attained while serving on active duty was private (E-2).  It also contains a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and the absent without leave (AWOL) related misconduct that led to his discharge. 

On 7 September 1972, while still in AIT, the applicant accepted NJP for failing to go to his appointed place of duty.  On 7 January 1973, he failed to report for his port call and was declared AWOL.  He remained away for 32 days until returning to military control on 8 February 1973.

On 26 February 1973, a court-martial charge was preferred against the applicant for being AWOL from 7 January to 8 February 1973.  The applicant consulted legal counsel and was advised of the basis for the contemplated trial by 
court-martial, the maximum permissible punishment, and the effects of a discharge for the good of the service.  The applicant voluntarily requested to be  discharged for the good of the service/in lieu of trial by court-martial.

On 8 March 1973, the appropriate authority approved the applicant’s request and directed he be issued a UD and that he be reduced to the lowest enlisted grade.  Accordingly, on 16 March 1973 the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial.  At the time of his discharge he had completed only 
9 months and 10 days of creditable active military service and he had accrued 
32 days of time lost due to AWOL.

There is no evidence to show the applicant applied to the Army Discharge  Review Board for an upgrade of his discharge within its 15-year statue of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service/in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that his mother’s illness caused his AWOL related misconduct but finds this factor alone is not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The Board notes that after consulting with legal counsel, the applicant voluntarily requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Finally, the Board finds the applicant’s characterization of service was appropriate based on his undistinguished overall record of service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JHL___  __MDM__  __JAM__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001059879	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/11	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19730316	
DISCHARGE AUTHORITY	AR 635-200, CH 10.  .  .  .  .  	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.00	
2.		
3.		
4.		
5.		
6.